On appeal from the Atlantic County Circuit Court.
For the defendant-appellant, Edmund C. Gaskill, Jr., and Abraham Rosenberg.
For the plaintiff-respondent, Coulomb, McAllister & Hunter.
The opinion of the court was delivered by
FREUND, J. The appellant, County of Atlantic, appeals from the entry of a summary judgment in favor of the respondent, rendered in the Atlantic County Circuit Court, which struck the appellant's answer and separate defenses, and ordered the entry of summary judgment for the respondent. Prior thereto the appellant moved to strike respondent's complaint, which motion was denied, Adams v. County of Atlantic, 25 N.J. Mis. R. 291. The instant appeal is from the refusal to grant the motion to strike the complaint, the granting of the motion to strike the answer and the entering of summary judgment.
The complaint alleges that the respondent was employed as an investigator in the office of the Prosecutor of the Pleas of Atlantic County. On September 29th, 1941, respondent enlisted in the New Jersey State Guard and continued in the service of the New Jersey State Guard until October 29th, 1942, when he resigned and was honorably discharged. The following day, October 30th, 1942, he received his commission as a lieutenant in the State Guard and continued as a lieutenant until April 19th, 1943. On November 27th, 1942, he enlisted in the United States Naval Reserve and was assigned to inactive duty. On April 14th, 1943, he was notified to report for active service in the United States Naval Reserve and was informed that before entering on such duties he would be required to resign his commission as lieutenant in the New Jersey State Guard. On April 19th, 1943, he submitted his resignation dated March 30th, 1943, from the New Jersey State Guard. On April 20th, 1943, at the Custom House in Philadelphia, respondent was assigned to active duty in the United States Naval Reserve and from then until June 22d, 1945, he continued in the active service of the United States Naval Reserve, on which latter date he was honorably discharged therefrom.
Respondent further alleges that from May 6th, 1943, to June 22d, 1945, he was in the active service of the United
States Naval Reserve and for that period of time he is entitled to be paid by the appellant the difference in the amounts he received as salary or compensation while in the active service of the United States Naval Reserve and the amount of salary or compensation he would have received had he remained and continued in his employment as investigator in the prosecutor's office, amounting to the sum of $2,067.03.
Subsequent to the denial of the appellant's motion to strike the complaint, the appellant filed its answer and separate defenses, and inter alia alleged that "plaintiff has neither a statutory nor common law right to receive payment of any monies from the defendant under the facts as alleged in his complaint" and that "plaintiff was not a member of the New Jersey State Guard * * * at the time he allegedly entered into active service with the United States Naval Reserve" and that "plaintiff resigned from the New Jersey State Guard prior to entering upon active service with the United States Naval Reserve, his said resignation having been accepted by the Governor of the State of New Jersey as of a date prior to the plaintiff's alleged service in the United States Naval Reserve" and that "the New Jersey State Guard was not called into active military service by the United States either individually or en masse. * * *"
The respondent then served notice of motion to strike the appellant's answer and defenses, which motion was granted and summary judgment was entered in favor of the respondent.
The respondent concedes that he has no common law right to receive the salary differential and rests his claim exclusively upon R.S. 38:12-4 and 5. The sole question presented by this appeal is the construction of these ...